Roche posted a blog in October of 2018 , titled Bail Reform – Another Strikeout. It reported that a number of cities, counties and states that have tried bail “reform” failed. Several states quickly reversed laws because they were a complete failure. Additionally, some states have falsely continued to push bad laws in the hope the data will improve.

Utah, New York, and Chicago

Utah ignored history and now realizes their failure. Chicago ignored history and denied facts of their study. They decided to double down. Recently, Illinois completely eliminated bail. Will Illinois fail like other states? Will History repeat itself once again? Time will tell.

In Utah, lawmakers now have buyer’s remorse just four months after implemented. At least Utah lasted a month longer than New York . New York reversed their foolish law just three months after Implemented. The reasons? Massive crime increases and massive outcry from citizens. Governor Cuomo agreed , bail reform was a failure.

Other states, implemented and then reversed bail reform policies. They include; Iowa, Alaska, and Delaware. New Mexico and Maryland are contemplating changes because bail reform is not working.

Why Eliminate Options?

What do each of the states have in common? The elimination of bail. An option for release that is enshrined in the 8th Amendment of our Constitution. They eliminated the right to bail. Some are pushing the numerous risk assessment algorithms that each claims to be the best and the “science” of releasing defendants. The claim is their algorithms can predict which defendants will attend all their court dates and not commit additional crimes. Bail elimination advocate, Pretrial Justice Institute, admitted algorithms are biased and not good predictors.  

What is the Answer?

Simple. For almost 250 years we have allowed experienced judges to do their job. Let them continue to use their experience to weigh various factors to determine the best method of release. Let them continue to utilize every method of release. Each year, millions are already released on their own recognizance. Presently, when a judge determines the need for an extra level of accountability it can be ordered. A judge can order accountable bail, monitoring, pretrial agencies, house arrest or any combination.

New Jersey

Most defendants are released pretrial. New Jersey eliminated bail in 2017. A 2018 New Jersey study found 94% of all defendants were released pretrial prior to bail reform. After 2017 bail reform the report stated; “the study revealed that the percentage of defendants released pretrial stayed virtually the same.” The study found failure to appear rates increased. It also found those released after bail reform committed more crimes.

If the same percentage of defendants are released pretrial, there are fewer failure to appears, and less crime, why is bail reform necessary? The answer: It isn’t! Bail elimination advocates want taxpayers to pay the burden for the release of defendants. New Jersey has already spent over $500 million since 2017! District of Columbia has spent over $1 Billion during the last 20 years!

Advocates who want to eliminate release options are misinformed. If they realized fewer release options will result in greater incarceration, they would change their position.

The Federal System

The Federal pretrial system sets bail with a monetary amount in many cases. However, very few defendants actually pay anything to be released. Federal bonds are essentially signature bonds that release the person on their own recognizance. A $10,000 Federal bond would only be required to be paid in the event the defendant failed to appear for court. It is a foolish system because how can the courts collect from a defendant does not appear? Why even have a bail amount?

“In the federal system, money bail is rare, and lawyers are generally assigned before a defendant’s first court appearance. But the rate of pretrial detention is even higher than in state criminal court. Approximately 75% of federal defendants  are locked up pretrial, compared to a 38% detention rate for defendants in state court.”Pretrial Detention in a Pandemic by Sarah Turberville & Katherine Hawkins

A federal judge once stated at an American Bar Association event in Tampa that he has never seen a federal bond forfeiture paid after a defendant failed to appear. It is only fluff.

No Bail Leads to Jail

When there is no bail, the only option becomes jail. Why eliminate options? Houston, Texas eliminated monetary bail for all misdemeanor offenses and many felony offenses a few years ago. A recent report by, The Crime Report, found Houston, Texas is out of jail beds. 87% of the jail population are pretrial detainees. And that’s during Covid times when jails are releasing numerous defendants. There are 17,000+ outstanding warrants in Houston.


After accountable, monetary bail was eliminated in Harris County, almost 50% of those released failed to appear. Those released on secured, accountable bail failed to appear at a rate of just 10%. The definition of the word reform means to make better. Does that sound better?

Should every defendant be required to post a bond? No. Millions arrested each year are not required to pay anything for release. They are released on their own recognizance when law enforcement or a judge/magistrate reviews the arrest and determines a monetary bond is not necessary. Eliminating accountable bail leaves judges with only two options: release or detain. The Federal pretrial system and Harris County are classic examples of what happens when bail is eliminated; more are detained in jail.

About Ken Berke

Ken Berke is a licensed bail agent in Florida. As Executive Vice President of Roche Surety & Casualty Co. Inc. he frequently travels throughout the United States meeting with bail agents and the public to increase awareness of the professionalism and importance of the bail industry to victims, defendants and the judicial system. He is a frequent contributor to the Roche Surety blog where he dispels false claims against the 8th Amendment and bail through facts, statistics and logic.